Summary
In Vancamp, we noted that a pedestrian who is attempting to walk across a street, and is about to walk in front of an oncoming vehicle, is "obviously in peril before she steps directly in front of the car."
Summary of this case from Womack v. StephensOpinion
No. 312A90
Filed 3 April 1991
Automobiles and Other Vehicles 570 (NCI4th) — pedestrian — struck by automobile — crossing road — last clear chance The Supreme Court could not conclude as a matter of law that plaintiff's evidence was insufficient to invoke the doctrine of last clear chance where the evidence, in the light most favorable to plaintiff, indicates that plaintiff pedestrian was within defendant driver's clear line of sight for five seconds before the collision, there was expert testimony that defendant had "ample" reaction time in which to see plaintiff and come to a complete stop, and a jury could thus reasonably infer both that defendant had the time and means to avoid the collision and that defendant negligently failed to use the available time or means to avoid injury to plaintiff.
Am Jur 2d, Automobiles and Highway Traffic 475.
APPEAL by defendants pursuant to N.C.G.S. 7A-30 (2) from the decision of a divided panel of the Court of Appeals, 99 N.C. App. 102, 392 S.E.2d 453 (1990), reversing a judgment granting defendants' motion for directed verdict entered by Ellis, J., on 22 February 1989 in Superior Court, ORANGE County. Heard in the Supreme Court 12 March 1991.
Jeffrey H. Blackwell for plaintiff appellee.
David F. Tamer for defendant appellants.
Justice MEYER dissenting.
Justices MITCHELL and MARTIN join in this dissenting opinion.
On 25 January 1988 plaintiff filed a lawsuit against defendants, alleging negligent operation of a motor vehicle resulting in a collision with plaintiff as she walked across West Hill Avenue in Hillsborough. Defendants answered, denying negligence on their part and alleging contributory negligence on the part of plaintiff. Plaintiff replied, denying contributory negligence and alleging that defendant-wife, the driver, had the last clear chance to avoid the collision.
The cause came on for trial at the 20 February 1989 Civil Session of Superior Court, Orange County. At the conclusion of plaintiff's evidence, the trial court granted defendants' motion for directed verdict. Upon plaintiff's appeal, a divided panel of the Court of Appeals reversed and ordered a new trial. Defendants exercised their right to appeal based on Judge Lewis's dissent. N.C.G.S. 7A-30 (2) (1989). The issue raised by the dissent is whether plaintiff's evidence was sufficient to invoke the doctrine of last clear chance. We hold that it was, and we thus affirm the Court of Appeals.
Plaintiff's evidence showed that at approximately 6:40 a.m. on 16 December 1986 plaintiff left her home and walked down her front walk towards West Hill Avenue. The morning was still fairly dark, but the sky was beginning to lighten and the weather was clear. Two street lights and a yard light provided additional illumination. Plaintiff was wearing blue jeans, a light-colored coat, and a red toboggan. Plaintiff had walked about three-quarters of the way across the street when defendants' automobile collided with her, causing serious injury. West Hill Avenue is straight, with unobstructed daytime visibility of approximately 400 feet. Defendant-wife was traveling twenty to twenty-five miles per hour with her headlights providing illumination for approximately 300 feet.
Allen Weliford, an expert in accident reconstruction, traffic engineering, and highway safety, testified on behalf of plaintiff. Weliford's testimony indicated that the collision occurred when plaintiff had walked approximately fourteen feet into the roadway. Weliford also testified that the average walking speed for pedestrians, and plaintiff's actual walking speed, was four feet per second. Thus, according to the expert testimony, it would have taken plaintiff five seconds to walk from six feet off the street to the point of impact. In addition, plaintiff would have been walking in the street for approximately 3.5 seconds before the collision. The expert testimony also indicated that the average reaction time for a driver is from 1.5 to 2.0 seconds and the stopping time for the range of speeds at which defendant was traveling is 1.0 second. Thus, the expert concluded that it would
take 5 seconds for the pedestrian to go from 6 feet off the pavement to the point of impact. If the car was in a skid for the last second, then it would, it leaves 4 seconds for reaction time. The average reaction time for drivers is around one and a half seconds. If you allow two seconds, in this case, because it's at night, . . . that still leaves an additional two seconds or ample reaction time for the driver to have seen the pedestrian in the act.
In reviewing the grant of a motion for directed verdict, the reviewing court
consider[s] the evidence in the light most favorable to the non-movant. . . . [T]he evidence in favor of the non-movant must be deemed true, all conflicts in the evidence must be resolved in his favor[,] and he is entitled to the benefit of every inference reasonably to be drawn in his favor.
Summey v. Cauthen, 283 N.C. 640, 647, 197 S.E.2d 549, 554 (1973) (citation omitted).
"On a motion by a defendant for a directed verdict in a jury case, the court must consider all the evidence in the light most favorable to the plaintiff and may grant the motion only if, as a matter of law, the evidence is insufficient to justify a verdict for the plaintiff."
Kelly v. Harvester Co., 278 N.C. 153, 158, 179 S.E.2d 396, 398 (1971) (quoting 5 Moore's Federal Practice, 41.13 (4) at 1155 (2d ed. 1969)) (emphasis in original).
The issue, then, is whether the evidence summarized above, in the light most favorable to plaintiff, is sufficient to invoke the doctrine of last clear chance.
All the necessary elements of the doctrine [of last clear chance] are . . . as follows: "Where an injured pedestrian who has been guilty of contributory negligence invokes the last clear chance or discovered peril doctrine against the driver of a motor vehicle which struck and injured him, he must establish these four elements: (1) That the pedestrian negligently placed himself in a position of peril from which he could not escape by the exercise of reasonable care; (2) that the motorist knew, or by the exercise of reasonable care could have discovered, the pedestrian's perilous position and his incapacity to escape from it before the endangered pedestrian suffered injury at his hands; (3) that the motorist had the time and means to avoid injury to the endangered pedestrian by the exercise of reasonable care after he discovered, or should have discovered, the pedestrian's perilous position and his incapacity to escape from it; and (4) that the motorist negligently failed to use the available time and means to avoid injury to the endangered pedestrian, and for that reason struck and injured him. [Citing 26 cases as authority]."
Clodfelter v. Carroll, 261 N.C. 630, 634-35, 135 S.E.2d 636, 638-39 (1964) (quoting Wade v. Sausage Co., 239 N.C. 524, 525, 80 S.E.2d 150, 151 (1954)).
It is undisputed that plaintiff, a sixty-two-year-old woman with loss of right field vision in both eyes, placed herself in a position of helpless peril when she attempted to cross West Hill Avenue without benefit of traffic control signals or a marked pedestrian crosswalk. Though it appears that defendant did not actually know of plaintiff's presence in the roadway, "`a motorist upon the highway does owe a duty to all other persons using the highway, including its shoulders, to maintain a lookout in the direction in which the motorist is traveling.'" Watson v. White, 309 N.C. 498, 505, 308 S.E.2d 268, 273 (1983) (quoting Exum v. Boyles, 272 N.C. 567, 576, 158 S.E.2d 845, 852-53 (1968)). Expert testimony indicated that automobile headlights would illuminate a person six feet off the side of the road from a distance of 150 feet. Thus, there is ample evidence from which the jury could determine that the second element of the Clodfelter test — that defendant-wife knew or by the exercise of reasonable care could have discovered plaintiff's perilous position — was met.
The primary focus of the trial court's ruling, and the thrust of Judge Lewis's dissent, was that evidence satisfying the third element of the Clodfelter test is absent. The trial court concluded that defendant-wife, once she became aware of plaintiff's presence, "did all she could." In dissent, Judge Lewis concluded that although "plaintiff may have had a last `possible' chance to avoid injury, she did not have the last `clear' chance." VanCamp v. Burgner, 99 N.C. App. 102, 106, 392 S.E.2d 453, 456 (1990) (Lewis, J., dissenting). The essence of this element, and the fundamental difference between a "last clear chance" and a "last possible chance," is that defendant must have "the time and the means to avoid the injury to the plaintiff by the exercise of reasonable care after she discovered or should have discovered plaintiff's perilous position." Watson, 309 N.C. at 505-06, 308 S.E.2d at 273 (emphasis added). The reasonableness of a defendant's opportunity to avoid doing injury must be determined on the particular facts of each case. See Exum v. Boyles, 272 N.C. at 575, 158 S.E.2d at 852.
In Wanner v. Alsup, 265 N.C. 308, 144 S.E.2d 18 (1965), this Court found sufficient evidence to take the issue of last clear chance to the jury where plaintiff, dressed in white, walked across the street without benefit of a pedestrian crosswalk. Plaintiff was visible to defendant from a distance of approximately 320 feet, defendant was traveling approximately thirty to thirty-five miles per hour, and the street was straight with unobstructed vision. The defendant in that case, as here, did not reduce his speed, sound the horn, apply the brakes, or turn his car in any manner whatsoever. Id. at 309, 312, 144 S.E.2d at 19, 21; see also Earle v. Wyrick, 286 N.C. 175, 209 S.E.2d 469 (1974) (sufficient evidence to support last clear chance where defendant had unobstructed view from several hundred feet, traveling twenty-five to thirty miles per hour, but did not see plaintiff until "a split second" before impact); cf. Watson, 309 N.C. 498, 308 S.E.2d 268 (no evidence of last clear chance where defendant is traveling forty miles per hour, sees plaintiff only upon coming out of a curve, has only 1.28 seconds to react before impact, and only seventy-five feet in which to stop); Battle v. Chavis, 266 N.C. 778, 147 S.E.2d 387 (1966) (no evidence of last clear chance where defendant, traveling at thirty to thirty-five miles per hour, could not see plaintiff until within 130 feet; less than three seconds to react and stop). In the light most favorable to plaintiff, the evidence here indicates that plaintiff was within defendant's clear line of sight for five seconds before the collision. Further, there is expert testimony that defendant had "ample" reaction time in which to see plaintiff and come to a complete stop, thereby avoiding harm to plaintiff. Thus, from plaintiff's evidence, a jury reasonably could infer both that defendant had the time and means to avoid the collision, and that defendant negligently failed to use the available time and means to avoid injury to plaintiff. Thus, we cannot conclude as a matter of law that plaintiff's evidence was insufficient to invoke the doctrine of last clear chance.
For the foregoing reasons, the decision of the Court of Appeals is
Affirmed.